Last Updated Date: January 2, 2019
PLEASE BE AWARE THAT SECTION 16 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- Use of the Services.
- About the Application. The Application is a cryptocurrency trading platform that provides users with a common user interface into certain cryptocurrency exchanges (each such exchange that is available through the Services at any given time, an “Exchange”) via which users can, among other features, see their holdings information, information on open orders and trade history for such Exchanges, execute trades via the Exchanges and obtain insights regarding the Exchanges via data visualization and charting. The Application also offers a separate interface via which users can engage in non-custodial trading on certain Exchanges (the “Non-Custodial Trading Services”).
- Beta. THE APPLICATION (AND THE SERVICES OFFERED THROUGH SUCH APPLICATION, INCLUDING, BUT NOT LIMITED TO, THE NON-CUSTODIAL TRADING SERVICES) REPRESENTS A PRE-RELEASE “BETA” VERSION OF COMPANY’S TRADING PLATFORM APPLICATION THAT IS BEING MADE AVAILABLE BY COMPANY SOLELY FOR TESTING AND EVALUATION. THE “BETA” VERSION OF THE APPLICATION IS MADE AVAILABLE WITHOUT ANY WARRANTY OF ANY KIND, IS ACCESSED AT YOUR OWN RISK AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION.
- Specific Disclaimers. IN ADDITION TO THE GENERAL DISCLAIMERS IN THE TERMS, YOU ACKNOWLEDGE AND AGREE THAT: (A) THE SERVICES ARE SOLELY A PLATFORM THAT ENABLES YOU TO VIEW CERTAIN INFORMATION AND TAKE CERTAIN ACTIONS, SUCH AS EXECUTE TRADES, VIA THE APPLICABLE EXCHANGES; (B) THE SERVICES RELY ON INFORMATION FROM THE EXCHANGES, INCLUDING, BUT NOT LIMITED TO, EXCHANGE DATA (AS DEFINED BELOW); (C) COMPANY DOES NOT GUARANTEE THE SEQUENCE, ACCURACY, COMPLETENESS, OR TIMELINESS OF SUCH INFORMATION OR THE SERVICES AS IT RELATES TO SUCH INFORMATION; (D) NONE OF THE INFORMATION CONTAINED ON THESE SERVICES CONSTITUTES A SOLICITATION, OFFER, OPINION, OR RECOMMENDATION BY COMPANY TO BUY OR SELL ANY CRYPTOCURRENCY, OR TO PROVIDE LEGAL, TAX, ACCOUNTING, OR INVESTMENT ADVICE OR SERVICES REGARDING THE PROFITABILITY OR SUITABILITY OF ANY CRYPTOCURRENCY OR INVESTMENT; (E) THE INFORMATION PROVIDED ON THESE SERVICES IS NOT INTENDED FOR USE BY, OR DISTRIBUTION TO, ANY PERSON OR ENTITY IN ANY JURISDICTION OR COUNTRY WHERE SUCH USE OR DISTRIBUTION WOULD BE CONTRARY TO LAW OR REGULATION; AND (F) ANY ESTIMATES, INCLUDING ESTIMATED PROFIT, FEE OR NET ARE ESTIMATES ONLY AND ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY BASED ON EXCHANGE DATA. ACCORDINGLY, ANYTHING TO THE CONTRARY HEREIN SET FORTH NOTWITHSTANDING, THE COMPANY PARTIES (AS DEFINED BELOW) SHALL NOT, DIRECTLY OR INDIRECTLY, BE LIABLE, IN ANY WAY, TO YOU OR ANY OTHER PERSON FOR ANY: (I) INACCURACIES OR ERRORS IN OR OMISSIONS FROM THE SERVICES INCLUDING, BUT NOT LIMITED TO, EXCHANGE DATA; (II) DELAYS, ERRORS, OR INTERRUPTIONS IN THE TRANSMISSION OR DELIVERY OF THE SERVICES; OR (III) LOSS OR DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR BY ANY REASON OF NONPERFORMANCE.
- License. Subject to the Terms, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access, solely for your own personal, noncommercial use (a) the Application on any compatible device that you own or control, and (b) the other aspects of the Service. Furthermore, with respect to any Application accessed through or downloaded from an application store or marketplace, such as the Apple App Store or Google Play Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the Application. To the extent the terms of these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
- Your Use of the Services. You, and not Company, are solely responsible for your use of the Services and any use of the Services via your Account, including, but not limited to, the trades you place on the various Exchanges via the Services. You represent and warrant that you will not use the Services for any purpose that is prohibited by the Terms or by applicable law. Without limiting the foregoing, you are solely responsible for complying with applicable cryptocurrency laws, rules and regulations. The Application communicates directly from your device to the Exchanges rather than through any Company servers. You acknowledge and agree that you, and not Company, are solely responsible for the security of your device(s) on which the Application is downloaded.
- Updates. You understand that Services are evolving. As a result, Company may require you to accept updates to Services, including the Application, that you have installed on your computer or mobile device. You acknowledge and agree that Company may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use Services.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms. Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by Company pursuant to the Terms.
- Third-Party Materials. As a part of Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
- Registering Your Account. In order to access certain features of the Services, you must download the Application, which creates a unique user ID that represents your account (“Account”).
- Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form; and (b) maintain and promptly update such information to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned from any of the Services.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
- Exchange Credentials. To enable trading on the various Exchanges using the Services, you must provide your login credentials, including API account keys, to such Exchanges (“Credentials”) through the Service. You represent and warrant that you are entitled to provide your Credentials for use for the purposes described herein, without breach by you of any of the terms and conditions that govern your use of the applicable Exchange and without obligating us to pay any fees or making us subject to any usage limitations imposed by such Exchanges. You hereby expressly consent to and authorize the use by the Application of your Credentials on your behalf to provide the Services to you, including to execute trades on the various Exchanges as requested via your use of the Application. To be clear, your Credentials are shared directly from your device and not via Company’s servers .By providing your Credentials within the Application, you understand that (a) the Services may access, make available and store (if applicable) certain data and information that you have provided to and stored in such Exchange, such as holdings data, information on open orders and trade history, so that it is available on and through the Application via your Account, and (b) we may transmit and receive additional information to such Exchange (all such data and information, the “Exchange Data”) as necessary to provide the Services, such as to execute trades on your behalf through such Exchanges. You expressly consent to and authorize the foregoing on your behalf to the extent necessary to provide the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE EXCHANGES ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH EXCHANGES. If the Services connection to the Exchange becomes unavailable or if access to the Exchange via the Services is terminated by the Exchange operator, you acknowledge and agree that certain aspects of the Services will not be available. You can deactivate the connection between the Services and a particular Exchange at any time by removing such Exchange in your Application settings. You acknowledge and agree that (i) the Exchanges available for integration via the Services are at the sole discretion of Company, (ii) at any time, with or without notice to you, Company has the right to remove certain Exchanges from being available for integration via the Services, and (iii) Company will not be liable to you for any addition or removal.
- Exchange Data. By their nature, the Services inherently rely on the sequence, accuracy, completeness and timeliness of the Exchange Data. You acknowledge and agree that (a) Company has no responsibility or liability for and does not control the Exchange Data, (b) Company has no obligation to review or monitor Exchange Data, and (c) Company does not approve, endorse or make any representations or warranties with respect to the Exchange Data, including the sequence, accuracy, completeness and timeliness thereof. Unless otherwise specified in these Terms, all Exchange Data pulled using your Credentials, if any, will be considered your User Content (as defined below) for all purposes of these Terms. You further acknowledge and agree that Company has no responsibility or liability for and does not control the Exchanges or any actions taken by the Exchanges with respect to the Services or your use thereof, including, without limitation, any violation of applicable law by the Exchanges, rejection of trades submitted via the Services, or any actions against you by the Exchange. You are solely responsible for your interactions with the Exchanges and any other parties with whom you interact on or through the Services. You agree that Company will not be responsible for any liability incurred as the result of such interactions.
- Non-Custodial. Trading Services. The terms and conditions in this Section 3 apply solely
to your use of the Non-Custodial Trading Services. To the extent that the terms and conditions in this
Section 3 conflict with any terms and conditions elsewhere in these Terms, this Section 3 shall control with
respect to the Non-Custodial Trading Services.
- Users. In order to use the Non-Custodial Trading Services, (a) you must not be (and you represent and warrant that you are not) a current resident of the United States and (b) you must be (and you represent and warrant that you are) a verified user of the applicable Exchange. For purposes of the foregoing, a “verified user” means a user who (i) has an account on the applicable Exchange and (ii) has successfully completed the Exchange’s “Know Your Customer” process. You acknowledge and agree that you are solely responsible for (and that the Company has no responsibility or liability for) your use of the Non-Custodial Trading Services, including, but not limited to, the custody, control and security of you coins and keys, properly funding any escrows submitted by you (including, but not limited to, inputting the correct sending and receiving addresses used to open and close escrows, funding the appropriate amount, and funding an escrow on the correct Blockchain), and the security of computing environment.
- Escrows and Trades. Users can submit escrow requests to the applicable Exchange via the Application, and such requests may be subject to acceptance or rejection by the applicable Exchange (in the Exchange’s sole discretion). You will get notice of such acceptance or rejection via the Application. You must fund accepted escrows from your own wallet of choice. The Company does not control such wallet or your usage thereof, and you, and not the Company, are solely responsible for any incorrect use of such wallet. For each escrow, you will be able to see via the Application the following: the type of coin, the Exchange, expiry, and number of coins. You are solely responsible for selecting the blockchain you want to use for the escrow (the “Blockchain”). You acknowledge and agree that escrows have to be confirmed on the applicable Blockchain, which may cause a delay in the execution of the escrow based on congestion confirming transactions on the Blockchain, Blockchain forks and reorganizations, and changes in Blockchain mining power and mining fees. In addition, an escrow may fail to be confirmed altogether due to Blockchain forks, reorganizations and changes in mining power and mining fees. Though the Company sets certain requirements regarding these confirmations, you acknowledge and agree that the Company has no responsibility or liability for any such delays or failures. Coins are locked in escrow until the escrow is closed and you can only trade with those coins at the applicable Exchange with which you have the escrow. If you fail to close any Exchange Escrow prior to their expiry, the Company cannot guarantee that such coins will not be lost, including, for example, due to the actions of or activities involving the applicable Exchange. As a result, we strongly recommend that you close all escrows prior to their expiry. Trades cannot be reversed once made and the Company will not be responsible for refunding any trades once accepted.
- Role of Exchanges and Blockchain. You acknowledge and agree that the performance and functionality of the Blockchains and the Exchanges are a critical dependency of the Non-Custodial Trading Services and that the Company has no responsibility or liability for and does not control the Blockchains or Exchanges or any actions taken by the Blockchains or Exchanges with respect to the Non-Custodial Trading Services or your use thereof, including, but not limited to, any improper confirmations or funding of escrows or any delays in such confirmations or funding. Without limiting the foregoing, (a) the applicable Exchange, and not Company, is solely responsible for user verification, accepting or rejecting escrow requests or trades (if applicable), funding escrows, pricing for escrow fees, estimating and pricing quotes for trades, and accepting orders placed for trades, and (b) the applicable Blockchain, and not Company, is solely responsible for confirming transactions that open and close escrows. The Company makes no guarantee regarding the performance of a Blockchain at any given time, including that Blockchain will perform at all.
- Responsibility for Content.
- Types of Content. “User Content” means any and all data, information and content (“Content”) that a user submits to, or uses with, the Service, including Exchange Data pulled using such user’s Credentials. You, and not Company, are entirely responsible for your User Content, and that other users of the Services, and not Company, are similarly responsible for all User Content they made available through the Services.
- No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. In the event that Company pre-screens, refuses or removes any User Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any User Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any User Content. Company has no responsibility or liability for the deletion or accuracy of any User Content; or the failure to store, transmit or receive transmission of User Content.
- Services. Except with respect to User Content, as between you and Company, you agree that Company and its suppliers own all rights, title and interest in the Services, including, but not limited to, any Content available on or through the Services.
- Trademarks. and and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
- Other Content. Except with respect to your User Content, you agree that you have no right or title in or to any Content that appears on or in the Services.
- License to Your User Content. Company does not claim ownership of your User Content. Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, your User Content (in whole or in part) for the purposes of operating and providing the Services to you. You represent and warrant that you have all rights necessary to submit your User Content and grant the licenses herein. You agree that you, not Company, are responsible for all of your User Content.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
- User Conduct. As a condition of your use of the Services, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any User Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; or (iv) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services.
- Investigations. Company may, but is not obligated to, monitor or review the Services and User Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such User Content violates the Terms or any applicable law. Although Company does not generally monitor user activity occurring in connection with the Services or User Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.
- Third-Party Links. The Services may contain links to third-party websites, applications and services (collectively, “Third-Party Links”). Such Third-Party Links are not under our control, and we will not be liable for any Third-Party Links. We provide access to these Third-Party Links only as a convenience to you, and we do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. You use all Third-Party Links at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.
- Fees and Beta Period. The Services are currently offered free of charge, provided, however, that Company reserves the right in its sole discretion to charge for the Services in the future. With respect to the “beta” version of the Application, at the end of the beta period, your use of the Application will expire and any further use of the Application is prohibited unless you sign-up for any future version of the Services (if and to the extent available) and pay any applicable subscription fee for such version, if any.
- Indemnification. You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, licensors, successors and assigns (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including the Exchanges; (e) your violation of any applicable laws, rules or regulations; (f) your violation of any terms of service applicable to the Exchanges in your use of the Services; or (g) any compromise to the Services resulting from your use of the Services. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
- Disclaimer of Warranties and Conditions.
- As Is. YOU EXPRESSLY UNDERSTAND AND
AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES
EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
- COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT ACCESSED THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, EXCHANGE DATA, IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS, INCLUDING FINANCIAL LOSS, THAT RESULTS FROM ACCESSING SUCH CONTENT OR YOUR USE OF THE SERVICES.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXHANGES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
- Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR THE SERVICES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR, IF NO SUCH AMOUNTS ARE PAID, ONE HUNDRED US DOLLARS ($100), AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
- Violations. If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in Company’s possession in connection with your use of the Services, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that your User Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Company, its users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
- Breach. In the event that Company
determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise
demonstrated conduct inappropriate for the Services, Company reserves the right to:
- Delete any of your User Content;
- Discontinue your Account;
- Discontinue your subscription to any Services;
- Notify and/or send Content, including your User Content, to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which Company deems to be appropriate.
- Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used the Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Services (whichever is earlier) and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.
- Termination of Services by Company. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms, your violation of applicable laws, rules or regulations, or any compromise to the Services resulting from your use of the Services. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) deleting the Application from your device. Your notice should be sent, in writing, to Company’s address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. If you delete the Application from your device, all associated information will also be deleted. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your User Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- International Users. The Services can be accessed from countries around the world and may contain references to the Services and Content that are not available in your country. These references do not imply that Company intends to announce such Services or Content in your country. The Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- Dispute Resolution. Please read the following arbitration agreement in this Section
(“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the
manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify; and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Corporation Service Company, at 251 Little Falls Drive, Wilmington, DE 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the Commonwealth of Massachusetts. All other claims shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Underscore VC, C/O Commonwealth Crypto, 45 School St., 2nd Floor, Boston, MA, 02108 or email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. Except as provided in subsection 16.5, If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Company at the following address: Underscore VC, C/O Commonwealth Crypto, 45 School St., 2nd Floor, Boston, MA 02108.
- General Provisions.
- Electronic Communications. The communications between you and Company use electronic means, whether you access or use the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of the Exchanges of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.”
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at:firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Boston, Massachusetts.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
- Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: Underscore VC, C/O Commonwealth Crypto, 45 School St., 2nd Floor, Boston, MA 02108. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms